Spouse's Extention after Separation with Partial Fitness to Work

After a (homo- or heterosexual married) couple splits, the dependant status terminates and possibly a new and independent one starts (§31 AufenthG). This implies that the general requirements for a residence permit in §5 AufenthG must be met by the now independent spouse. But what happens to this spouse when they are only partially fit to pursue a gainful employment? VG Hamburg gave an answer to this question on February 1, 2007 (re 10 E 4110/06).


Fatima entered Germany in 2001 to cohabit with her husband. He was an Iranian with a permanent residence permit. In May 2005, they were divorced. When reapplying for the residence status, she stated to be "permanently separated". Her income was public welfare. She had received an unrestricted work permit from the competent Labor Agency. Therefore, the foreigners office extended her residence permit as independent. In 2006, as this permit was to be prolonged again, it was not. She only received a "Fiktionsbescheinigung" (§81 IV AufenthG) and the office told her that they were not intending to extend her permit again because she was not in the position to finance herself without public funds. Her need of public funds constituted their misuse (§§31 II cl. 3, V AufenthG) because she did not show any efforts to find a job.

She protested against this decision. Fatima not only claimed to be in psychiatric treatment but also presented several physician's reports (heavy depressions and migraines. Another such report (with an illegible name) stated that she was not able to physically work for more than 4 hours per day and then only light work, no sitting. Nevertheless, and in spite of her horrible health conditions, she is trying to create a future. She got a subsidized job in the kitchen of a kindergarten and has the option to be fully hired after the probation period. The psychiatrist's report stated that Fatima had such a heavy depression that she was until further notice not able to participate in the integration course. For therapeutical reasons, he recommended easy activities up to four hours to structure her daily schedule.

The court dismissed the case. Fatima did not present facts to justify an exception that is not able to support herself by employment or own funds. Such exception is only possible for special circumstances. Such special circumstance would be a sickness preventing the ability to pursue an employment or the necessity to care for minors. Fatima did not show such compelling reasons. The physicians' reports unanimously did not exclude her from working. There are jobs where it is not necessary to sit all the time. Besides that, Fatima did not show that she was really trying to find a job that could do.

When an illness of a foreigner can constitute such an exception that it is justified to accept the dependency on welfare is a matter of the individual case. Nevertheless, the rule is not to extend a residence permit to prevent demands on welfare from public funds. Even a severe disability to work is not acceptable.

Additional information